Is the Supreme Court Ducking the Same-Sex Marriage Question, and If So, Is That Wrong?

At their private conference last week, the nine Justices of the Supreme Court were expected to decide whether to grant review on one or more petitions for review in cases involving same-sex marriage and gay rights more broadly. Instead, the Court took no action, thus leaving Court-watchers like yours truly to continue to speculate about whether and, if so, when the Justices will decide a same-sex marriage case.

The delay could be just that, a temporary delay. As early as this coming Friday, the Court might announce that it has granted review in one or more of the same-sex marriage and related cases. But the very fact that the Court could choose to duck the issue is remarkable—and anomalous. For most of American history, the Supreme Court was obligated to hear truly important cases like these.

In this column, I explain what may be causing the Court to delay, and ask whether it would be a legitimate exercise of the Court’s discretionary control over its docket to duck the same-sex marriage cases.

The Issues

The Court has before it a large number of petitions relating to same-sex marriage, but the ones that have been most closely watched involve two questions: First, is Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same sex marriage—constitutionally valid? And, second, did California violate the Constitution when it enacted Proposition 8, which (prospectively) eliminated the possibility of same-sex marriage, thereby nullifying an earlier California Supreme Court ruling that had found a state constitutional right to same-sex marriage? The lower courts ruled in favor of the challenges to both DOMA and Prop 8, and the petitions that are now before the U.S. Supreme Court seek review of those rulings.

Nobody doubts that these cases present important questions about which lawyers, politicians, and citizens hold profoundly different views. So why doesn’t the Court simply grant review and resolve those differences? A number of factors may be in play, as I’ll explain.

“Vehicle” Problems for the DOMA Cases

Unlike constitutional courts in some other democracies, the Supreme Court of the United States only decides constitutional issues as they arise in concrete cases. As a consequence, the Court must sometimes grapple with what lawyers call “vehicle” problems: A case may present an important constitutional issue, but only indirectly or in a way that entangles it with unrelated procedural questions; in these circumstances, the case may be a poor vehicle for addressing the core question.

Each of the DOMA petitions before the Court has a potential vehicle problem. Windsor v. United States originated in New York, but it does not present the constitutional question in its purest form. Although New York State law currently permits same-sex couples to marry, when the Windsor case originated, it did not. At that time, New York only recognized same-sex marriages that were performed outside of the state and so gave legal effect to the Canadian marriage of Edith Windsor and Thea Spyer. Pursuant to Section 3 of DOMA, the federal government refused to treat the couple as married. But the question of whether the federal government has an obligation to give the same effect to a foreign marriage as a state gives that marriage may be subtly different from the question of whether the federal government has an obligation to give the same effect to a state marriage that the very state itself gives that marriage. Accordingly, if the Supreme Court grants review in Windsor, it may not have an opportunity to address the federalism issue that Section 3 of DOMA raises.

A similar problem is presented by Office of Personnel Management v. Golinski, a challenge to DOMA from California. Because the California Supreme Court held that Prop 8 contained an implicit “grandfather clause” for same-sex couples who married after that Court legalized same-sex marriage but before Prop 8 was adopted, the Golinski case does involve a same-sex couple that is married under state law. But in light of Prop 8, it is hard to see Section 3 of DOMA as quite the affront to California policy on same-sex marriage that it is in states where same-sex marriage is wholly legal. Furthermore, in Golinski, the federal government has sought Supreme Court review of the district court’s ruling, without waiting for a ruling by the Ninth Circuit. Although the Court occasionally grants such pre-judgment review, it does not do so frequently.

The cleanest vehicle for resolving the validity of Section 3 of DOMA would be one of the cases that originated in Massachusetts, where same-sex marriage first became legal in the United States. But because of her work on the issue as Solicitor General, Justice Elena Kagan would apparently recuse herself from consideration of a case originating in Massachusetts. As I have previously noted, it is passing strange to think that Justice Kagan’s prior work taints her on a case coming from Massachusetts but not from California or New York. However, the risk of her recusal—and the corresponding possibility that the remaining members of the Court could split 4-4—is enough to leave the Justices worried about taking a Massachusetts case.

Accordingly, even if the Supreme Court is inclined to accept a DOMA case for review, the Justices may be struggling with the question of which case to take, so as to maximize their ability to reach the merits cleanly.

The Limited Reach of the Prop 8 Ruling

The Prop 8 case, Perry v. Brown, does not present a vehicle problem, but it also affords the Justices an excuse for denying review. In his opinion for the U.S. Court of Appeals for the Ninth Circuit invalidating Prop 8, Judge Stephen Reinhardt offered a California-only rationale. He did not say that every state that denies same-sex couples the right to marry thereby violates the Constitution. Rather, he said that California’s decision to take away a right of same-sex marriage after it had granted one was motivated by anti-gay animus, and therefore violated the Fourteenth Amendment’s Equal Protection Clause. The opinion left open the possibility that other states might have valid reasons for not recognizing same-sex marriage in the first place.

Whether the difference between not granting and taking away can properly do the work with which the Ninth Circuit tasked it is an interesting question (and one I addressed on my blog earlier this year). But right or wrong, the Ninth Circuit opinion only legalizes same-sex marriage in California because no other state has granted and then taken away the right. Accordingly, the Supreme Court could deny review in the Prop 8 case without leaving the nation in a state of legal confusion.

Reasons Why the Court Might Duck the Merits

But doesn’t the Supreme Court want to take a case or cases that enable it to resolve, once and for all, whether laws barring or limiting same-sex marriage are constitutional? The short answer is no.

Supreme Court Justices do not stand for election but they are, in many respects, like elected officials in that they care about their standing with the public. When push comes to shove, they will make unpopular decisions if they see no other legally permissible option, but like politicians, they would prefer to duck divisive questions.

Indeed, a leading scholar of constitutional law, the late Yale Law School Professor Alexander Bickel, coined a term for the Supreme Court’s use of low-profile procedural mechanisms for avoiding high-profile substantive decisions. He called such maneuvers an exercise in the “passive virtues.” Chief Justice Roberts believes in the passive virtues: he would like to preserve the Court’s prestige and legitimacy by avoiding entanglement in controversial issues.

To be sure, the passive virtues are not always so passive, nor so virtuous as their moniker suggests, as I explained in a 2006 essay. Still, it is a fair bet that, if they had their druthers, at least some of the Justices on the Roberts Court would prefer to leave the legal questions surrounding DOMA and same-sex marriage to the political process.

The Rise of Discretionary Docket Control

Are the Justices planning to duck the same-sex marriage cases? Perhaps not, but it is somewhat remarkable that they even have the option.

Under the Judiciary Act of 1789, state courts were given primary responsibility for hearing cases challenging the validity of Acts of Congress, and if a state court invalidated a federal statute, the U.S. Supreme Court was obligated to review that decision. The Court did not receive the discretion to deny review in any cases until 1914, and mandatory jurisdiction in a large category of cases remained the rule until 1988. Thus, the nearly complete discretionary control over its docket that the contemporary Supreme Court exercises is a relatively recent innovation.

Did Congress give the Court discretion to control its docket so that it could exercise the passive virtues by ducking contentious issues? It is possible that some members of Congress so reasoned, but the core driving force behind the century-long shift from mandatory to discretionary jurisdiction was docket pressure: Congress was concerned that the obligation to hear all cases that fell within the Court’s mandatory jurisdiction was crowding out other important cases.

By any measure, the same-sex marriage cases are important; they present the sort of issue that the Court should be addressing. Thus, although the Supreme Court does have the unreviewable power to duck the same-sex marriage cases, doing so would hardly be consistent with the underlying purpose of discretionary jurisdiction.

Finally, even if one were persuaded that the most prudent course for the Court would be to punt the same-sex marriage cases back to the political process for a few years, doing so with respect to DOMA would be contrary to the Court’s institutional interest. The Obama Administration has taken the position that DOMA is unconstitutional. Nevertheless, to ensure that someone has standing to challenge the law—and thus to submit the issue to the Supreme Court for judicial resolution—the Administration continues to enforce DOMA, even as it argues that the law is invalid.

That enforce-but-don’t-defend posture, in combination with the appointment of counsel to represent Congressional supporters of DOMA, shows respect for the Court’s role in our constitutional system. If the Justices deny review in the DOMA cases, the Administration will come under increasing pressure to abandon enforcement of DOMA on the ground that, with the Supreme Court absenting itself, the appeals court rulings will be definitive.

Accordingly, I expect the Justices to grant review in at least one of the DOMA cases. They may not want to decide these cases yet, but they will likely conclude that staying out of the fray is not an option. In this context, even a decision not to decide would be an important decision.

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